As fashion executives continue to ponder how to address the issue of underweight models, there is one more piece to add to the debate: legal ramifications.
Without an overarching national requirements in the U.S. regulating a model's weight, such as those implemented in Italy and Spain last year, it's up to individual organizations and executives to set company policy on the issue. Companies looking to implement policies on models' weight need to keep in mind legal requirements, particularly in the area of discrimination, according to legal observers.
"The general concern we wanted to raise to employers in the fashion industry is, while they should address this issue, they need to be careful how they do it," said Patricia Slovak, partner with Schiff Hardin and current chair of the American Bar Association Section of Labor and Employment Law.
Specifically, Slovak said, fashion companies need to be aware of potential discrimination lawsuits and accusations around the issue of weight from an employment perspective. From health and psychological points of view, the "unhealthy weight" of models is a concern, she said. What many employers in the fashion industry might overlook is some legal precedents relating weight to disabilities.
There are several cases on record in which the courts have said that anorexia, for example, is considered a disability and as such is protected under the Americans With Disabilities Act. While the cases on record don't currently address models or employment in the fashion industry, there's no reason the precedent couldn't apply, Slovak warned.
To avoid potential lawsuits over such issues, employers need to be careful how they proceed in regard to modeling requirements, just as they would be mindful of other potential discrimination issues.
The overlying standards of the Americans With Disabilities Act dictate that employers establish the legitimate requirements of a job and ensure that they are not refusing to hire employees who could complete that job simply because of a disability. Under the protections of the act, a candidate cannot be passed over for a job only because he or she has a disability, if an employer could accommodate the person with a reasonable amount of adjustments.
So if a model has been diagnosed with anorexia and reveals that in an interview the employer could be considered to have received notice of a potential disability, Slovak said. A hiring decision could not be made based on that diagnosis, regardless of what policies on healthy weight a company might have in place.The Council of Fashion Designers of America came out with a suggested Health Initiative in January, emphasizing education instead of enforcement as the way to deal with the issue. The CFDA outlined guidelines that included educating the industry about early warnings signs of an eating disorder and requiring models who are diagnosed with an eating disorder to seek treatment.
"What I would advise employers in the fashion industry to do is to take a look at the unhealthy weight that has gotten so much publicity, acknowledge that and act on that in an affirmative way in terms of what they are looking for in their employees, but to do it knowing that everything they do has to be done within the context of discrimination laws. The same careful approach that presumably they would take when they're hiring anyone else for their business, they need to apply in this arena as well," Slovak said.
For companies who might use an outside agency, it is important to establish sufficient policies regarding these issues. Under the concept of joint employer status, the fact that a model is employed by an agency does not always insulate a fashion company from potential liability.
In addition to the court setting a precedent whereby anorexia could be considered a disability, there have been other lawsuits that established that physical appearance was not the proper basis for making employment decisions, although those were associated with obesity. But, Slovak said, the same analysis could be used in the context of anorexia as a condition related to physical appearance.
Italy earlier this year established a requirement mandating a specific body mass index for models who walk in the runway shows. From a legal standpoint, unless it could be proven that body weight was a physical requirement for the job, it could be problematic to implement similar policies in the U.S. Plus, there are further legal considerations for employers in establishing company policies related to this issue. Because body type can vary by race or ethnicity, any attempt to establish a company rule about models' physical appearance could end up in even stickier territory, Slovak said.
"The underlying message for employers is not to try to correct one issue without considering all of the ramifications of corrective action," she said.
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